USPTO refuses registration of Broken Matt Hardy TM application

May 29, 2017

Matt Hardy was handed a potential setback from trademarking “Broken Matt Hardy.”  The USPTO issued an Office Action which is denying the process for the “Broken Matt Hardy” trademark application.  The good news is that Hardy has a chance to respond to the initial decision.

Hardy applied to register his “Broken Matt Hardy” gimmick with the United States Patent and Trademark Office on March 1, 2017.  Last week, the USPTO issued a response initially denying the Trademark.

Hardy identified the first use of the trademark from April 20, 2016.  With existing use of an applicant’s trademark, you must provide what’s called a “specimen.”  This is to show the use of the trademark in commerce and your prior use (of the trademark before applying with the USPTO).  But the digital images include two YouTube video images showing  the use of Broken Matt Hardy in two promotions, and the third is an “EventBrite” screenshots for tickets to a talk featuring “Broken Matt Hardy.”  While all of these show the use of the name, these do not give rise to a trademark.

The Office Action notes:

Personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enters., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Prods., Inc., 170 USPQ 423 (TTAB 1971)(GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).

Matt Hardy USPTO Office Action by JASONCRUZ206 on Scribd


As an example of a successful trademark of a wrestler’s name, the WWE applied for the trademark of “Daniel Bryan.”  The WWE registered the character name as a “Service Mark” and a Trademark.

The specimen for the Bryan service mark is one from the talent roster on NXT.

The trademark specimen for Bryan included an image of the character toy action figure.

Payout Perspective:

The Broken Matt Hardy trademark application can still be successful if Hardy’s representatives amend the application to include a specimen showing a service mark using Broken Matt Hardy.  Of course, if that has not happened yet, they could always convert the application to an “Intent to Use” application which means they plan to use the trademark at some point in the future.  Notably, the Daniel Bryan Service Mark is a web site screen shot of his NXT bio whereas you can argue it is similar to what Hardy submitted.  Hardy should have six months from the date of the issuance of the Office Action to respond or the application will not go forward.

Hunt lawsuit will continue after Motion to Dismiss hearing

May 25, 2017

The Las Vegas Court hearing the Mark Hunt lawsuit has denied the UFC, Dana White and Brock Lesnar’s Motion to Dismiss in part and granted portions of the lawsuit.  The upside for Hunt is that it has 10 days to file an amended complaint.

The hearing occurred on Monday, but the order was not posted until today.

Hunt filed this lawsuit in early January against the UFC, Dana White and Brock Lesnar claiming RICO violations, breach of contract, negligence and other allegations stemming from his UFC 200 bout against the current WWE star.

The Minute Order is as follows:

Full docket text for document 63:
MINUTES OF PROCEEDINGS – Motion Hearing held on 5/22/2017 before Judge Jennifer A. Dorsey. Crtrm Administrator: Danielle Cacciabaudo; Pla Counsel: Scott Ingold, Joseph Gonnella; Def Counsel: Colby J. Williams, Donald Campbell, Howard Jacobs, Kendelee Works, Peter Christiansen; Court Reporter/Recorder: Felicia Zabin; Time of Hearing: 1:58 p.m. – 3:08 p.m.; Courtroom: 6D;

The Court makes preliminary remarks and hears oral arguments on the motions to dismiss [11] and [30]. For reasons stated on the record, the Court GRANTS in part and DENIES in part the motions to dismiss [11] and [30] as stated. Plaintiff has 10 days to file an amended complaint.

The Court further DENIES the motion to stay [47] without prejudice as stated on the record.

The minutes of this proceeding and the transcript will serve as the Court’s official order. No written order to follow

Payout Perspective:

This was the likeliest of outcomes with respect to dismissal of Hunt’s Complaint.  Parties have a right to refile and the interesting issue will be to see if the amended complaint will include RICO claims which carry treble (3x the proven amount) damages.  Additionally, the Court determined that the Motion to Stay Discovery is denied.  Since Hunt has the opportunity to file an amended complaint, there is no need to halt discovery since all indications is that Hunt will refile and this lawsuit will continue.

Anthem exec releases portions of Hardy contract in IP dispute

May 24, 2017

Ed Nordholm, Executive Vice President of Anthem Sports & Entertainment, sent out an email and attachment of portions of Matt Hardy’s contract related to the use of the “Broken Brilliance” creative which is sparking a potential Intellectual Property dispute between the Hardy’s and its former contractors.

MMA Payout obtained a copy of the along with members of the pro wrestling media.  The email sent out on Tuesday outlines the substance of communcations between Anthem (i.e., TNA Impact Wrestling) and the Hardy Brothers over the potential use of their “Broken” gimmick in WWE.  For those that have been following, the Hardy Brothers used the gimmick in Ring of Honor after leaving Impact Wrestling.  A cease and desist letter was sent to Ring of Honor and its distributors to prevent the Hardys to use their gimmicks while developed in Imp act Wrestling.

The email outlines the log of communications between Nordholm and the Hardy’s.  You can envision it being included in a declaration if this were to go to court.

  • March 10 – EBN speaks with executives at ROH about “Broken Brilliance” being used in ROH shows. I indicated willingness to provide an arrangement that would allow the creative to be used in ROH shows and encouraged ROH to have Matt speak with me if he wanted to pursue that discussion
  • March 11 – EBN spoke at length with Matt by telephone about the structure of an amicable arrangement for use of the Broken Brilliance creative
  • March 14 – Matt sent text message to Ed Nordholm at 4:05pm:

“Tried giving you a call, it rang & went busy. I’m open to working things out amicably as we spoke about. The lawyer who represent me is interested in seeing your offer. My lawyer’s email is {redacted} which you could send the offer to for review. Thanks.”

And I responded by text at 6:41 pm

“Thank you Matt. I was supposed to be [flying] into NYC today and am a little twisted. I will pull something together with [our] lawyers and try to get it over to your lawyer tomorrow or Thursday at latest“

  • March 16 – At 8:25 pm I sent an update text to Matt:

“Hi Matt. My lawyer got me a draft too late to get reviewed for today. I will look at it in the morning. Sorry for the delay”

And he responded at 9:16 pm

“Ok, he’s ready for it. Thanks for the update.”

  • March 17 – counsel for Anthem Wrestling delivered draft proposal to counsel for Matt Hardy
  • March 24 – counsel for Anthem Wresting followed up with Matt Hardy counsel requesting comments on the proposal
  • March 27 – counsel for Matt Hardy responds that they have been away and have not reviewed the proposal but will be back “in the next few days”

After which no further communication until

  • April 18 – counsel for Matt Hardy leaves a voice mail message for counsel for Anthem Wrestling asking to arrange a meeting
  • April 20 – EBN contacts WWE by email to determine veracity of internet rumours concerning WWE interest in Broken Brilliance
  • April 21 — WWE respond by email that there “is no interest on our end” {redacted email exchange attached}
  • April 21 – counsel for Matt Hardy sends a follow up message requesting a meeting
  • April 27 – lawyers speak to arrange a meeting
  • May 16 – lawyers meet but no agreement reached

In addition, Nordholm included relevant portions of the Hardy contract with Impact Wrestling.  The blue underlined sentences are from Nordholm’s copy.  It is done to highlight the terms which they argue rule this contract issue.   Notably, section C reflects that the Company owns all Performances, “free from any claims of ownership by the Contractor (i.e., Matt and Jeff Hardy) or any other party.  Section D notes the “Assignment of Works” is owned by the Company even if the contract is terminated.  Under the Original Intellectual Property and Merchandising Section B it notes that the Company shall be “free from any claims of ownership by the Contractor.”

Hardy Contract Extract by JASONCRUZ206 on Scribd

Payout Perspective:

As we opined in our post on March 30th, “Who owns your gimmick?”  The contract is the first thing that you have to look at when determining who owns the intellectual property created during the contracted relationship.  Was the contract legal?  It appears it is from what has been produced.  Next, the Independent Contractor Agreement reflects the fact that anything made while under contract is owned by the Company.  It’s quite unfair but not unusual.

The release seems like a way to avoid potential litigation over the Copyright issue.  Assuming the contract was signed by the Hardys and was valid at the time of signature, the provisions in the contract would favor TNA.  Clearly, what the company is angling toward is a possible license it can sell to the WWE for use of the gimmick.  MMA Payout will keep you posted.

Cyborg cited for misdemeanor after Magana confrontation

May 23, 2017

MMA Junkie reports that Cristiane Justino has been cited by Las Vegas Metropolitan Police for misdemeanor battery as a result of confrontation with Angela Magana on Sunday.

Both fighters were in attendance at the UFC fighter summit.  Magana indicated that she wanted to press charges.  The information was from an incident report from Junkie reporting.  The Clark County District Attorney’s Office will be sent the report and determine whether to prosecute Justino.

Per Junkie, a charge of misdemeanor assault carries a potential penalty of six months in jail and a $1,000 fine.

Payout Perspective:

We will see if the DA decides to prosecute this case.  It seems like a very small incident that is not worth the time of the attorney’s office.  Despite the fact that Magana wants to “press charges,” that’s not how it works.  Of course, if she wants to file a civil suit for battery she could.  She could also sue the UFC and the JW Marriott for not providing a safe environment and premises liability.  Don’t know if that happens but you can follow the lawsuit that boxer Dominic Brezeale filed against the Wilder brothers and the Mariott.

Court delays hearing on outstanding fact discovery issues in UFC Antitrust case

May 18, 2017

A hearing that was set for Thursday to discuss outstanding issues in the UFC Antitrust case has been continued until June 1st.

The hearing was requested to determine outstanding discovery issues.  The fact discovery deadline was May 1, 2017.  However, Plaintiffs argued that the UFC had not turned over certain documents that would facilitate the depositions of Dana White and others.  It also indicated that it had yet to receive non-party information from outside parties.   The UFC claimed that Plaintiffs were reopening fact discovery.  It did concede to a 30 day continuation of fact discovery.

A portion of the Order from Pacer reads:

IT IS ORDERED that the [52] Ex Parte Motion to Continue Hearing is GRANTED, and the hearing currently scheduled for May 18, 2017, at 1:45 p.m. is VACATED and CONTINUED.

Motion Hearing set for 6/1/2017, at 9:30 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.

Payout Perspective:

It looks like the Court would like the parties to “meet and confer” on their outstanding issues themselves and come up with a plan.  The deposition of Dana White is notable as Plaintiffs are seeking text messages from several phones in possession of White.  While the UFC claims to have turned over these records, Plaintiffs have stated that there are more texts not produced.  It does look like that we are in a holding pattern until there is some resolution of discovery issues.

Bisping in court battle with former manager/gym

May 18, 2017

Michael Bisping is embroiled in a lawsuit in the UK with his old gym, Wolfslair.  A trial is ongoing in which his former gym and managers claim the welterweight champion owes them 270,000 pounds (or approximately $350,000).

The UK’s Daily Mail reported that Anthony McGann, owner of the Wolfslair Gym and Bisping’s former manager claims the fighter owes them for management fees dating back 10 years.  Bisping denies the claim and states he never signed a renewed contract with McGann in 2012.

Bisping signed a deal with McGann and the Wolfslair MMA Gym in 2005 but severed ties with them in 2012 claiming they were “violent people.”  He moved to the U.S. to train and found new management. McGann is seeking management fees from the years he was aligned with the gym.

In Court, Bisping denied signing a contract that was presented to him during testimony.  He claimed that it was his signature but the document was not the same.

The contract stated that McGann would receive a 20% commission from the representation of Bisping.

At the time of this writing, a decision has yet to be rendered.

Payout Perspective:

This is another example of why there is a need for an Ali Act in MMA.  I am not familiar with the laws in the UK, but it’s clear that either Bisping did not know what he was signing and that McGann may have taken advantage of him.  20% is a pretty steep commission, if the contract dictated that is what he had to pay.  On the other hand, you have cases like Ronda Rousey and former manager Darin Harvey.  Harvey may have had good intentions, at some point, and advanced costs to Rousey, and never received payment back.  We will see how this plays out.  If it is truly $350,000 in fees I don’t see why Bisping does not attempt to settle the case unless it’s a principal of the matter issue.   Sorry $350,000 so settlement may be out of question.

Motion to Dismiss Hunt lawsuit delayed

May 16, 2017

On Monday, a Minute Order was issued by the Federal Court in Nevada handling the Mark Hunt lawsuit against Dana White, Brock Lesnar and the UFC.  Due to a conflict a hearing on dismissing the lawsuit filed by Mark Hunt was reset to Monday, May 22, 2017 at 2pm.

Hunt filed the lawsuit in January alleging RICO violations, breach of contract, fraud and other allegations from his fight against Lesnar at UFC 200.  The UFC and White filed a Motion to Dismiss the Complaint.  Lesnar joined the motion and filed one of his own.  Hunt’s attorneys opposed the motions to dismiss.

The “Minute Order” is an official order from the Court but a court reporter may not be present.  Oftentimes, it is a response to a party’s request.  But in this case, it merely is resetting the date of the motion one week.

In the meantime, Lesnar’s attorneys have filed their Reply in Support of its Motion to Dismiss:

Reply Motion by Lesnar by JASONCRUZ206 on Scribd

Zuffa responds to Plaintiffs’ letter to the Court

May 10, 2017

Zuffa has responded to Plaintiffs’ letter to the Court requesting a status conference on outstanding discovery issues.  In its letter to the Court, they clarify issues asserted for the Plaintiffs and indicate that they are willing to extend the fact discovery deadline until June 15, 2017 but no new fact discovery requests.

The fact discovery deadline was May 1, 2017.  This would have been the last date in which Plaintiffs would have been able to obtain documents from Zuffa as well as non-parties (e.g. Bellator).  Notably, a Motion to Compel documents from Zinkin Entertainment is set for June 23, 2017, well past the deadline.

The Zuffa letter states that it has turned over 6,800 texts from two cellular phones used by Dana White.  Plaintiffs claimed that White had four phone numbers and likely four phones.

Zuffa asserts that it is willing to extend the fact discovery deadline but not 60 days, nor open it up to new discovery.  They contend, citing the letter Plaintiffs sent to Bjorn Rebney, that Plaintiffs have performed extensive discovery.

Zuffa's Response to Ps Statement by JASONCRUZ206 on Scribd

The status conference is set for May 18, 2017.

Payout Perspective:

Using your own words against you hurts and this is what Zuffa attempts to do with the letter Plaintiffs sent to Bjorn Rebney in order for him to “cease and desist” from going forward with MMAAA.  The letter writing fight should be settled on May 18th and likely both sides will not be happy.  But, Zuffa’s letter advises the Court that Plaintiffs had ample time to obtain discovery while still seeming reasonable in proposing an extended date for discovery.

Second securities lawsuit filed against Alliance MMA

May 9, 2017

A second securities lawsuit has been filed against Alliance MMA for claims that it misled investors.  The new lawsuit filed May 3rd is in the United States District Court for the Southern District of New York and seeks class action status.

The lawsuit arises out of an amendment made by the company which trades on the NASDAQ.  In an 8-K filing made by the company last month, it stated that financial statements previously made for the nine months ended September 30, 2016 included in the Company’s Form 10-Q, three months ending June 30, 2016 and six months ending June 30, 2016 could no longer be relied upon because of an error in recognizing as compensation transfers of common stock by an affiliate of the Company to “individuals who were at the time of transfer, or subsequently became, officers, directors or consultants of the Company.”

The Complaint filed by plaintiff David Shulman states that Alliance MMA completed its IPO that consisted public sale of 2,222,308 shares of the Company’s common stock at $4.50 per share.  According to a Declaration from the Plaintiff filed with the Complaint, he purchased 100 shares of Alliance MMA on October 16, 2016 for $3.99 per share.

As of this writing on Tuesday, May 9, 2017, the stock is trading around $1.53 per share.

A Second Alliance MMA Lawsuit by JASONCRUZ206 on Scribd

Certification of Plaintiff in Second Alliance MMA Lawsuit by JASONCRUZ206 on Scribd

Payout Perspective:

The lawsuit is similar to the one filed in New Jersey last month.  One might expect a similar response from Alliance MMA in that it has retained a law firm to defend itself against these allegations.  With an issue like this, it is expected that Plaintiff attorneys smell blood in the water and search for investors that may have been harmed from the misstatements made by the Company.  MMA Payout will continue to follow the situation.

Plaintiffs in UFC Antitrust lawsuit seek status conference to decide outstanding issues

May 7, 2017

Attorneys representing the Plaintiffs in the UFC antitrust lawsuit have requested a status conference with the federal magistrate to discuss outstanding issues that may impact the prosecution of its class action lawsuit.  The letter with the Court was filed on Friday, May 5th.

The Plaintiffs list several issues as to request a hearing with the Federal Magistrate, the judge that decides discovery issues.

Statement to Court by Plaintiffs by JASONCRUZ206 on Scribd

Among the outstanding issues Plaintiffs would like to discuss include:

  • Plaintiffs’ Emergence Motion for Extension of Discovery Deadline and Case Management Schedule;
  • Plaintiffs’ Motion to Challenge Work Product Designation;
  • Non-Party Bellator’s Motion to Quash or Modify Subpoenas;
  • Third Party AXS TV LLC’s Motion to Quash Deposition Subpoenas of Mark Cuban (Plaintiffs’ response is due on May 8, 2017 according to the letter and similar to the Bellator issue, would like to move them to the District of Nevada.

As of the date of the letter, the Court has not ruled on any of the above motions.  Also, it has yet to hear the Motion for Summary Judgment of Plaintiff Nate Quarry.

Plaintiffs claim that these issues coupled with issues of preservation regarding obtaining text messages from Dana White’s four separate telephone numbers (and likely the same number of phones) as well as other documents not produced for key Zuffa witnesses have blocked the prosecution of the case.

Payout Perspective:

The need for all the information possible prior to a deposition is because Plaintiffs know they get one shot at deposing the witness and if they do not have the documents prior to the deposition they will not be prepared to ask questions related to the documents that may relate to their case.  In addition, Plaintiffs’ dilemma with non-parties is having the possibility of needing to litigate those matters as well.  Zuffa will likely respond to the letter and the Court will need to make a decision on whether to hold a hearing, decide the above issues or go forward with the current court deadlines.

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